The Risk Manager, Summer 2008

The following checklist for avoiding inadvertent disclosure of information is from an article by Willis S. Baughman in the Lawyers Mutual Insurance Company of California’s Spring 2008 Bulletin. It contains guidance for both lawyers sending and receiving documents. We have modified the checklist to show Kentucky authority when applicable.

Tips for “Sending” Lawyers

• On all outgoing documents include an appropriate legend indicating:
  • Privileged & Confidential
  • Attorney-Client Communication
  • Attorney Work Product
• Avoid using “Reply All” feature in replying to e-mail.
• Avoid using “Speed Dial” feature for facsimile transmissions – instead manually punch in numbers.
• Be cautious when disconnecting from conference calls.
• With respect to all modes of communication check carefully before sending!
• Sad but true: If you don’t know and trust your adversary, guard your files!
• Once it is discovered that privileged or confidential information has been inadvertently sent, immediately contact the receiving lawyer. Consider as guidance proposed Federal Rule of Evidence Sec. 502 that provides:
  • Inadvertent disclosure of protected communication or information is not a waiver if:
    • The sender took reasonable steps to prevent disclosure; and
    • The sender employed reasonably prompt measures to retrieve the mistakenly disclosed communications or information.
• Special tips for sending electronic documents:
  • Eliminate metadata with scrubbing programs.
  • Train personnel to use programs that clean and seal documents before sending them to a third person.
  • Establish policies and procedures to apply to all outgoing documents.
  • Avoid sending the electronic document in the first place.
  • Save and transmit documents in non-electronic formats, such as:
    • Hard copy;
    • Create an image; and
    • Print and fax.

Tips For “Receiving” Lawyers

• The moment it becomes reasonably clear that the material was inadvertently sent and not intended for you:
  • Review the material only to the extent necessary to ascertain if it is in fact privileged or confidential.
  • The moment it becomes reasonably clear the material is privileged or confidential follow the guidance in KBA ethics opinion E-375 (1995) that provides:
    • A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall:
      • refrain from reading the document,
      • promptly notify the sender, and
      • abide by the instructions of the sender regarding its disposition.
• Work with the sending lawyer to resolve the situation through mutual agreement.
• In situations where mutual agreement is not feasible or possible seek judicial guidance:
  • Consider using judicial intervention;
  • Consider protective orders where necessary.
• Act fairly and reasonably:
  • Take steps that protect not only your client’s interest, but also the legitimate interests of the opposing lawyer and his client
  • Take steps that are in accord with the core value and dignity of:
    • The legal profession;
    • The attorney-client relationship;
    • The judiciary;
    • The administration of justice.